The EU and Maltese legal orders : what kind of marriage between them?

Abstract

I start by introducing the Maltese legal order at the cross-roads of civil law and common law. Malta has a long legal history tied to continental Europe, and this very strong connection strengthened during the period of the Knights from 1530 to 1798 and continued well beyond the arrival of the British in 1800. When the Maltese Civil Code was first enacted in 1868, the major source was the Code de Napoleon. As a result, Maltese substantive private law is based on the Roman/Civil law system. The British period, which lasted more than a century and a half, left a very strong impact on the Maltese legal order. In fact, British influence is mostly found in procedural and administrative law wherein the Maltese system is much closer to the British common law system than to the continental civil system. Nevertheless, the Maltese legal system, unlike the common law system, is a codified system so that even though the administrative and procedural law is based on common law, it is yet codified. The Maltese Code of Organisation and Civil Procedure (COCP) dates back to 18652. Although the Laws of Malta include codes as their continental counterpart, common law influence can still be seen as codification is not complete. While a good part of private law is found in the Civil Code and Commercial Code, other laws of a private law nature are scattered across various chapters of the almost 500 chapters of laws that make up Maltese law similar to the laws of England. While the courts adopt the adversarial system similar to common law, yet the doctrine of precedent, essential for a ‘pure’ common law system is absent from Malta. From a constitutional point, the Maltese Constitution follows the British model with one major difference. Under the British system Parliament is supreme and a Parliament can never bind a future Parliament. Under the Maltese Constitution, Parliamentary sovereignty is limited by the supremacy clause of the Maltese Constitution.